JIAN WANG and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 483
•10 July 2013
[2013] AATA 483
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1683
Re
JIAN WANG
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 10 July 2013 Place Brisbane The Tribunal refuses the application for an extension of time.
......................[Sgd]..................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Extension of time – Considerations as to whether reasonable in the circumstances – Length of delay – Merits of the application – Application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29
Australian Citizenship Act 2007 (Cth) s 25
Australian Citizenship Regulations 2007 (Cth) reg 7
CASES
Budd v Secretary, Department of Education and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
INTRODUCTION
On 22 May 2012, Mr Jian Wang (“the applicant”) was advised that the delegate of the Minister for Immigration and Citizenship made a decision to cancel the approval of his application for Australian citizenship by conferral. On 15 April 2013, the applicant filed an application with this Tribunal to extend the time for making an application for a review of the decision. On 22 May 2013, a direction was made for the application for the extension of time to be determined on the basis of written submissions. The applicant has made submissions in support his application for anextension of time. The respondent has made submissions to oppose the application for anextension of time.
BACKGROUND
On 16 June 2010, a letter was sent to the applicant to advise him that his application for Australian citizenship by conferral was approved. In that letter he was advised that he must make the “Pledge of Commitment” within 12 months of receiving the letter. The applicant departed Australia on 4 July 2010 and the Overseas Citizenship Unit (“OCU”) of the Department of Immigration and Citizenship (“the Department”) have invited the applicant to attend a number of citizenship ceremonies in China at which he could make the Pledge of Commitment.
The applicant has not attended any of the citizenship ceremonies in China to which he has been invited. In the letter of 16 June 2010, the applicant was also advised that arrangements would be made to enable him to attend a citizenship ceremony at the Australian Embassy in Beijing. On 1 March 2011, the applicant advised the Department that he was unable to attend the citizenship ceremony on 13 April 2011 at Beijing because of a business trip. On 2 March 2011, the delegate contacted three offices of the Department in China to arrange for the applicant to attend another citizenship ceremony. On 7 September 2011, the applicant was invited to attend the citizenship ceremony at Guangzhou. On 12 September 2011, he confirmed that he would attend the ceremony; however, he did not attend. Sometime after the ceremony he advised the Department that he had a high fever. On 12 January 2012, the applicant was sent an invitation to attend the citizenship ceremony on 1 March 2012 at Beijing. On 31 January 2012, the applicant informed the Department that he could not attend the ceremony for personal reasons and that he accepted he would have to reapply for citizenship because he missed the ceremony.
On 13 February 2012, the applicant was sent a notification of intention to cancel the approval of his application for Australian citizenship by conferral. He did not respond to that notification. On 22 May 2012, the delegate of the Minister made a decision (“the decision”) to cancel the approval of the application for Australian citizenship by conferral.
On 15 April 2013, the applicant filed an application with this Tribunal to review the decision. On that date he also filed an application to extend the time for making an application for a review of the decision. In that latter application, the applicant outlined his reasons for applying for an extension of time for lodging his application:
Because I got illness and have to be in hospital, so I didn’t receive the decision letter. When I returned to home, I just found that there is a email, so I responded the decision to OCU right now, but no one replied me for a few months, finally, I have to lodge a application to AAT, but I think the review rights calender maybe exceed the limitation, so I am applying for an extension, I hope AAT officer could consider and approve my application.
LEGISLATION
Section 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Act”) provides that an application to the Tribunal for a review of a decision “shall be lodged with the Tribunal within the prescribed time”. Section 29(2) of the Act provides that the “prescribed time” is:
… the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;
…
The Tribunal can extend the time for making an application for a review of the decision under ss 29(7) and (8) of the Act, which provides:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
CONSIDERATION
Decisions of the Federal Court of Australia provide guidance to this Tribunal on the considerations which are relevant to an application made under s 29(7) of the Act to grant an extension of time for making an application for a review of a decision.[1] In considering such an application, the Tribunal may grant an extension of time if it is “satisfied that it is reasonable in all the circumstances to do so”. After considering all of the submissions before me, I am not satisfied that it is reasonable in all the circumstances to extend the time for making the application.
[1] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350 per Wilcox J; Budd v Secretary, Department of Education and Workplace Relations [2008] FCA 1540.
I must examine why there has been a delay of more than nine months (and close to 10 months) in filing the application with this Tribunal. The applicant contends that he did not receive the decision letter that was sent by email until he “found” it on 31 January 2013. The applicant states that he was hospitalised and was unable to receive emails but has provided no evidence of such hospitalisation. After the applicant states that he received the decision on 31 January 2013 (and advice to the applicant of his right to appeal to this Tribunal), he then sent emails to the OCU on 31 January 2013 and 26 February 2013, but received no reply on either occasion. Even if the applicant became aware of the decision on 31 January 2013, he has given no explanation of the delay in filing an application with this Tribunal to extend the time for making an application for review of the decision.
I have also considered the merits of the application for an extension of time to make an application for review of the decision. This is one of the considerations that Wilcox J, in the Hunter Valley Developments case, stated should be examined by this Tribunal. The decision record of the delegate correctly refers to the issue of whether the applicant has provided a prescribed reason for failing to take the Pledge of Commitment in terms of reg 7 of the Australian Citizenship Regulations 2007 (Cth) (“the Regulations”). Attached to the decision record of the delegate are extracts from the relevant legislation. The delegate, quite correctly in my opinion, came to the conclusion that the applicant has not provided evidence that he has a prescribed reason for failing to take the Pledge of Commitment. The material does not disclose any of the prescribed reasons in subregulation 7(3) of the Regulations. The text of subregulation 7(3) (as well as other relevant legislation) was an annexure to the decision of 22 May 2013.
I consider that the delegate acted appropriately by excising the power to cancel the approval under s 25(3) of the Australian Citizenship Act 2007 only after the applicant was sent a notification of intention to cancel the approval of his application for Australian citizenship by conferral. This is in accordance with para 5.27.4 of the Australian Citizenship Instructions which states that a decision-maker should “proceed with the cancellation of approval if no satisfactory response is received and the person has been given an adequate opportunity to respond”. In my opinion this policy is appropriate to ensure that procedural fairness has been accorded to the applicant.
I also consider that the decision of the delegate to send the applicant a notification of intention to cancel the approval of his application for Australian citizenship by conferral was a reasonable course of action. This action was reasonable in view of the statement of the applicant that he accepted that he would have to reapply for citizenship. The applicant, in his email of 30 January 2012, informed the OCU: “I must reapply for citizenship because I miss the ceremony this time, I will accept this”. Now the applicant contends that his statement has been misunderstood and that he meant to say: “I can accept that, if OCU cancel this ceremony application and I can apply for next ceremony”. On a fair reading of the email of 30 January 2012, it is apparent that the applicant indicated that he was prepared to reapply for citizenship. This construction is fair because the OCU has invited the applicant to attend the citizenship ceremonies without the necessity of the applicant having to apply to attend the citizenship ceremonies.
One of the contentions of the applicant is that the OCU should have contacted him by telephone or by post to advise him that his approval was cancelled. However, between 2010 and 2012 the applicant has been in extensive contact with the OCU by email and has never indicated that he would need another form of communication.
For the sake of completeness I should record that the applicant has not provided the Department with a signed statement under subregulation 7(5) of the Regulations which contains a description of any effort that the applicant has made to make a Pledge of Commitment within the relevant period as well as written evidence which supports that statement.
DECISION
I have decided not to extend the time for making an application for review of the decision of the delegate of the respondent dated 22 May 2012.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .......................[Sgd].................................................
Associate
Dated 10 July 2013
Date final submissions received 3 July 2013
3
0